LAXMI DEVI Vs. CHAIN SINGH

JUDGEMENT

(1.) THIS is the defendants appeal against the judgment of the two Courts below decreeing the suit of the plaintiffs Chain Singh and Yangian Singh declaring the gift executed by late Smt. Durgi Devi in favour of the appellant on 7.10.1977 Ex.PD as being illegal, void and in -operative against the interest of plaintiff.

(2.) THE facts as pleaded are that one Shri Kali Ram was the co -owner of the land alongwith other co -sharers in villages SheeliKalan, Jeunti and Juindon in Tehsil Kasauli, District Solan, as described in Jamabandies Ex.PE, Ex.PF and Ex.PG for the years 1974 -75 and 1975 -76 alongwith a residential house consisting of two rooms, a kitchen etc. etc. He executed a Will Ex.PA on 3rd May, 1972 bequeathing his half share to the plaintiffs and the other half to his wife Smt. Durgi Devi for whom he had created a life estate. Testamentary disposition was that after the death of Smt. Durgi Devi set up another will dated 3.5.1972 stating therein that the earlier will had been revoked and that she was the owner in possession of the land etc. This controversy between the two wills was the subject matter of Civil Suit No. 21/1 of 1975, titled: Yangian Singh and Chain Singh v. Durgi Devi, in the Court of learned Senior Sub Judge, Kasauli. The suit of the respondent -plaintiff herein was decreed and the plea of the defendant was negatived. In appeal [Ex.PZ(1)] , being Civil Appeal No. 58 -S/13 of 1976, titled: Smt. Durgi Devi v. Yangian Singh and others, which was filed in the Court of learned District Judge, Solan, it was affirmed that the will set up by late Smt. Durgi Devi (Ext.PA therein) was not the last will of testament of the deceased. Her appeal was accordingly dismissed. It is undisputed that this judgment was maintained up to the Supreme Court. In other words the will Ex.PA was upheld by all the Courts. It is undisputed that gift deed Ex.PD was executed by late Smt. Durgi Devi in favour of the appellant for the other half of the property which was, according to the plaintiff, to revert to them after her death. This is the bone of contention between the parties. Both the Courts below, on a consideration on the material on the record, have held that the gift is void and inoperative, against the right of the plaintiff and that the suit land, subject -matter of Ex.PD, was to revert to the plaintiff -respondent on the death of Smt. Durgi Devi.

(3.) THE appeal, though filed in the year 1996, has remained pending on the record of this Court and was admitted on 22.8.2002 on the following questions of law :